The basics #2 - Planning in a material world
“Material planning considerations”
Any decent #planorak could tell you that “material planning considerations” are at the heart of the statutory duties which control planning decision-making.
But material to what? How to distinguish material considerations that we can weigh in the balance from immaterial ones which could bring the whole exercise crashing down into the High Court?
The starting point is the speech of Viscount Dilhorne in Newbury District Council v Environment Secretary [1981] AC 578 (a case about a planning permission to use some 2nd World War hangars on Membury airfield to store rubber) which confirmed that planning conditions (and later the same tests were applied to planning considerations) must:
Serve a planning purpose; and
Fairly and reasonably relate to development permitted.
What’s a “planning purpose”? One which relates to the “character of the use of land”: Lord Scarman in Westminster City Council v Great Portland Estates Plc [1985] A.C. 661.
So far, so straightforward.
Still, some of the examples of “material considerations” which have been held to meet that test may be surprising, e.g.:
The relationship between a fast food take-away and its proximity to schools = material: R. (Copeland) v Tower Hamlets LBC [2010] EWHC 1845 (Admin).
A commitment to use locally sourced food at a motorway service station = material: R (Welcome Break Group Limited) v. Stroud District Council [2012] EWHC 140 (Admin).
A commitment to use local building firms in a housing project = material: Verdin v. Secretary of State for Communities and Local Government [2017] EWHC 2079 (Admin).
What about off-site financial contributions?
The courts have said for decades that planning permission “cannot be bought or sold”. And we know that – to take one extreme example – an office at one end of town can’t fund a swimming pool at the other end.
However, there are lots of examples in the caselaw where supermarkets offering to pay substantial sums to fund infrastructure or development off-site, and sometimes quite far off site, have been held to be material: see e.g. R. v Plymouth City Council Ex p. Plymouth and South Devon Cooperative Society (1994) 67 P. & C.R. 78 and Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.
In the end, what the court is after is a “real connection” between the money and the scheme, aka a connection with is more than “de minimis”. That may seem to set a pretty low hurdle to jump over – although it’s not a hurdle which is not always cleared.
The Wright case in the Supreme Court (full disclosure - I acted for the successful Appellant, Mr Wright), involved an application for a “community scale” wind turbine in Gloucestershire. Local people were to be offered shares in the scheme. It was to be run by a “community benefit society” under the Co-operative and Community Benefit Societies Act 2014, which would have to act “for the benefit of the local community”.
Part of the package was a proposed donation to a self-appointed group of local people of 4% of the scheme’s annual turnover. Which was projected to add up to a very substantial sum over the life of the scheme, up to around 1mil. That donation could be spent on anything the community wanted. At a similar scheme nearby, the money had been spent on everything from raincoats for the scouts to defribillators.
But, said the developers, the NPPF supports community-led initiatives for renewable energy. And the donation is part of this scheme being community-led. “Every turn of the blade”, the now-retired but always superlative Martin Kingston QC argued for the developer, would mean further community involvement in the scheme. It was not, he said, about the money. It was a about what the money represents, i.e. engagement of the local community following the NPPF.
The planning committee granted planning permission in part relying on the 4% donation is a benefit. But was it a material planning consideration at all?
The Supreme Court reinforced the approach in Newbury, and found that the money offered by the developer was not proposed as a means of pursuing any proper planning purpose, but for the ulterior purpose of providing general – and unrelated – benefits to the community. It did not fairly and reasonably relate to the development for which permission was sought.
Instead, it was “proffered as a general inducement to the Council to grant planning permission and constituted a method of seeking to buy the permission sought, in breach of the principle that planning permission cannot be bought or sold”.
So the “real connection” test may seem like a low hurdle. But as Wright shows, the hurdle is not always cleared!
